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2006 DIGILAW 310 (DEL)

KALTYAN SANSTHA v. UNION OF INDIA

2006-02-16

REKHA SHARMA, VUENDER JAIN

body2006
( 1 ) PURSUANT to our directions, status report has been filed Mr. Chandhiok, learned Senior counsel for the respondent/mcd has contended that the names and details of the properties have been put on the web-site. Certain cases and instances have been cited before us where the details of unauthorized construction, premises number, remarks column with regard to the nature of unauthorized construction, the quantum of the same and the extent of the same has not been placed on the website. Commissioner of mcd to ensure that the web-site which reflects the property number and the description thereof, the same should not be done in a tighter manner. If it is found that any wrong entry has been made either in terms of the number of the property or the extent of unauthorized construction or description of the user, the person feeding the computer and the sources from where it has come, both the officials shall be personally responsible and for any incorrect information major penalty be imposed against such erring officials as it will put the innocent citizens and others to great harassment in view of strict action taken pursuant to the order passed by this court. ( 2 ) MR. Chandhiok has also contended that in terms of the order passed by this Court information to the Sub-Registrar of assurances has been sent. However, it seems that the offices of Sub-Registrar of Assurances are not well-equipped. Therefore, a direction is issued to the Divisional Commissioner of the Govt. of NCT to be present in Court on the next date of hearing. Before coming to the Court, he must have the home work done as to how and in what manner the direction of this Court with regard to the names of owners as well as the number of the property has been reflected on the deed of conveyance and methodology adopted by deputy Commissioners in different districts, has been carried on. It has also been stated that after the passing of the order by this court, 1243 properties have been demolished. Certain photographs have been filed before us. We do not know on what basis these photographs have been filed. In our last order we have stated that no pick and choose policy be adopted by the MCD. We are told by Mr. Chandhiok that MGI and mg-2 have been demolished. Certain photographs have been filed before us. We do not know on what basis these photographs have been filed. In our last order we have stated that no pick and choose policy be adopted by the MCD. We are told by Mr. Chandhiok that MGI and mg-2 have been demolished. For the last one month MCD has taken almost three weeks to demolish two properties and on the same road has sealed some other properties. Why two different yardsticks? Why the other properties have not been meted with same fate as has been done in relation to MG-I and mg-2. Deputy Commissioner of the concerned Zone is not present today. He is directed in remain present in Court on the next date of hearing. He will explain as to why different yardsticks have been adopted by him. He would also explain as has been sought to be contended by Mr. Chandhiok before us that the same could not be demolished in view of some law and order problem, as when a request was made to the commissioner of Police and if request was made why Commissioner of Police has not provided adequate police force. Law cannot be made to dance at the tune of monocracy. It is not enough to say that one property has to be left out because its owner can gather mob and other can be demolished if he is not in position to gather some mob. Law has to be applied equally. Deputy Commissioner concerned shall file his personal affidavit with all the correspondence with the police, action taken and the discrimination in relation to other properties on the same road. ( 3 ) IN the last order we had observed that big fish particularly those who have used the property in residential areas for commercial purposes, properties which have been built unauthorized on Government land, properties which have been constructed in Lal Dora for commercial activities, have to be demolished forthwith. It seems that in the garb of only two properties MCD has not bothered to take the direction of this Court seriously. Mr. Chandhiok has, however, assured us that that is not the intention of the MCD. We do not appreciate the lacklustre approach of the mcd. It seems that in the garb of only two properties MCD has not bothered to take the direction of this Court seriously. Mr. Chandhiok has, however, assured us that that is not the intention of the MCD. We do not appreciate the lacklustre approach of the mcd. We have also stated in our last order that properties which have been built in residential areas and the same have been put for commercial use, deprive quality life to the residents of that area. The illegal shops, makeshift halls, haphazardly parked vehicles throw traffic out of gear on the narrow residential colony roads. Therefore, the MCD s drive for demolition has to direct all such unauthorized constructions carrying any kind of any commercial activity which are not permissible as per the building bye-laws in residential areas to be demolished forthwith. ( 4 ) WHEN we say about commercial user, obviously we are not referring t () the premises which have been used by the professionals for their office purposes like chartered accountants, or doctors or lawyers. ( 5 ) WE are not happy with the speed with which the demolition drive of MCD has undergone specially for these unauthorized commercial constructions. Commissioner of mcd is also directed to file before the next date of hearing as to how many properties from the figure of 20080 which have been given to ,us by Mr. Chandhiok today fall in this dass of misuser. ( 6 ) THE story does not rest here. It is only these properties which have been booked by the MCD, how many properties which have lot been booked by the MCD but also fall in the same class. It seems that MCD has not applied its mind till date to target and achieve that figure and it is not possible because the very instrument which the MCD is using either to book or not to book are the same. Pursuant to our first order when we passed orders on 14. 12. 2005 and 18. 1. 2006 we were told that the MCD has identified 94 AEs and JEs. Why only AEs and JEs have been chosen for action. ( 7 ) A circular of the MCD No. D476/addl. Cm. (E)/2001 dated 20. 8. Pursuant to our first order when we passed orders on 14. 12. 2005 and 18. 1. 2006 we were told that the MCD has identified 94 AEs and JEs. Why only AEs and JEs have been chosen for action. ( 7 ) A circular of the MCD No. D476/addl. Cm. (E)/2001 dated 20. 8. 2001, inter alia, lays down that a Construction Watching register has to be maintained by the Junior engineers and Junior Engineer will be required to carry out inspections of such buildings every forth nightly and to record his observations in the said register about any non-compoundable deviation against sanctioned plan and action taken against the said deviation. Asstt. Engineer in-charge of the area and Executive Engineer of the Zone will carry out test checks to the extent of 40% and 20% respectively of properties entered in the said Construction Watching register and will also record their findings. The modalities of test checks will be similar to that as laid down for unauthorized construction in earlier order of 4. 7. 200. It further says that the register should also be reviewed by Superintending Engineer once in three months and by the Deputy commissioner once in six months. ( 8 ) IT is not only Junior Engineers, Executive engineers or Assistant Engineers, the responsibility is also of the Superintending engineers and the Deputy Commissioners of the Zone Concerned. What action has been taken against the Deputy Commissioners or the Superintending Engineers by the MCD? simply passing the buck on Junior Engineers and the Assistant Engineers and not taking action against the Deputy Commissioners, the Superintending Engineers will be making mockery of justice in this whole drama of unauthorized constructions which could not have taken place but for the active connivance of these officers. If the citizens of Delhi on account of their unauthorized action have to pay for demolition and loss occurred to them, then by no stretch of imagination these officers who have been instrumental in getting these unauthorized construction done in spite of the fact that they were paid from public exchequer for keeping a vigil not to allow unauthorized constructions, have to face the consequences. In our last order we have made it very clear that the unauthorized construction could not have been possible but for the abetment of these persons who were responsible for checking the unauthorized constructions in spite of our direction. In our last order we have made it very clear that the unauthorized construction could not have been possible but for the abetment of these persons who were responsible for checking the unauthorized constructions in spite of our direction. When a person is appointed to carry out a public duty in terms of statute and if it is found that statute has been violated in spite of putting the custodian on duty by providing funds from the public exchequer, the principle of audi alteram partem cannot be invoked by such delinquent persons. Those officers and engineers of the MCD who were involved or connived or abetted in the coming up of such buildings have to be dealt with severely. As in our last order we have granted two months time on 1and. 1. 2006 and time will expire on 18. 3. 2006, we would like the commissioner of MCD to submit the action taken report against all these officers. We are also not happy as to why only officers in the six zones have been identified. The MCD has got 12 zones. Mr. Chandhiok says that process to identify is on. Why this delay? It is open to naked eye and who were responsible if the MCD look to their own register of posting and the unauthorized construction in the zones, no further evidence is required but still we are giving time till the next date of hearing to have these persons booked and action taken. Another strange thing is that these so- called 94 engineers which have been identified are still continuing in the building department. Commissioner of MCD to submit a report as to why in spite of issuance of charge-sheet, they have been still retained in the building department. We do expect the Commissioner of MCD at least not to allow these coloured people to continue for a day in the MCD and they are still continuing with the building department. Why it has happened, under whose instructions and why this lapse? The affidavit of Commissioner of MCD be filed on the next date of hearing. ( 9 ) IT has been brought to our notice that in pitampura after the sealing, the owners/ occupiers have started functioning from the back door. We direct M~. Why it has happened, under whose instructions and why this lapse? The affidavit of Commissioner of MCD be filed on the next date of hearing. ( 9 ) IT has been brought to our notice that in pitampura after the sealing, the owners/ occupiers have started functioning from the back door. We direct M~. Chandhiok to take instructions and see if it has happened, then the officer-in-charge of the area concerned of the MCD should be promptly shown the door. ( 10 ) ON the last date of hearing, we had also directed the DDA to take action against unauthorised construction in the area falling within suit jurisdiction. No status report has been filed. Mr. Sabharwal says that the same shall be filed before the next date of hearing. However, action has been initiated in terms of the order passed by this Court. Renotify on 22. 3. 2006. Copy of the order be given Dasti to counsel for MCD, DDA and NCT of Delhi under the signature of Court Master of this court. .